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(Oct. 9, 2008) The Supreme Court of Ohio ruled today that, before accepting a guilty plea to a felony offense, Ohio trial courts must strictly comply with Ohio Criminal Rule 11(C)(2)(c) by orally advising the defendant of five specific constitutional rights the defendant will waive (give up) by pleading guilty. The Court held further that a trial court’s failure to strictly comply with the rule invalidates the defendant’s guilty plea.

The Court’s 4-3 majority decision, which affirmed a ruling of the 10th District Court of Appeals, was authored by Chief Justice Thomas J. Moyer.

On July 16, 2004, Thomas Veney was indicted on counts of felonious assault and kidnapping, both with firearm specifications. The indictment stemmed from an incident in which Veney had an argument with his wife, held a gun to her head, threatened to shoot her, and fired the gun into the wall of his home. When the gun jammed and his wife fled the house, Veney followed her outside and fired additional shots as she ran away.

Veney accepted a plea bargain in which he agreed to plead guilty to attempted felonious assault, a third-degree felony, and to a single firearm specification. In court, prior to accepting his plea, the trial judge engaged in a discussion with Veney to determine that he knew and understood the rights he was giving up by pleading guilty, as required by Crim.R. 11. During that discussion, the judge failed to advise Veney of one of the rights enumerated in the rule: the right to a trial at which the state would have to prove his guilt “beyond a reasonable doubt.” Following the judge’s advisement, Veney affirmed that he understood his rights and entered a plea of guilty. He was convicted and sentenced to a total of five years in prison.

Veney subsequently appealed his conviction to the 10th District Court of Appeals, claiming that his guilty plea was invalid because the judge had failed to advise him orally of the state’s obligation to prove his guilt beyond a reasonable doubt if the case went to trial. The court of appeals reversed the conviction and granted Veney a new trial, holding that the trial court was required to “strictly comply” with Criminal Rule 11(C)(2)(c), and failure to advise Veney of the state’s beyond-reasonable-doubt burden of proof required reversal of his conviction. The state, represented by the Franklin County prosecutor’s office, sought and was granted Supreme Court review of the 10th District’s ruling.

In today’s decision, Chief Justice Moyer noted that Ohio adopted Crim. R. 11 in 1972 in response to a 1969 decision, Boykin v. Alabama, in which the U.S. Supreme Court held that a court’s failure to explicitly advise a defendant of specific constitutional rights he was giving up by pleading guilty rendered the defendant’s waiver of those rights invalid. He acknowledged that a line of cases decided by the Supreme Court of Ohio since 1977 has established a standard of “substantial compliance” under which a guilty plea is not necessarily invalidated where a trial court omits some portions of the colloquy required by Crim.R. 11. He emphasized, however, that those rulings all dealt with a court’s failure to advise the accused of a nonconstitutional prerogative of the defendant or duty of the state.

In distinguishing those cases from the issue raised by Veney, the Chief Justice wrote: “Despite the evolution of substantial compliance as a standard for the court’s nonconstitutional notifications and determinations required by Crim.R. 11 (C)(2)(a) and (b), the same is not true for the constitutional rights within Crim.R. 11(C)(2)(c). ... Crim.R. 11(C)(2)(c) requires that the defendant be advised of the right to a jury trial, the right to confront one’s accusers, the privilege against compulsory self-incrimination, the right to compulsory process to obtain witnesses, and the right to require the state to prove guilt beyond a reasonable doubt. The first three are the three constitutional rights originally identified in Boykin v. Alabama ... We recognized notification of the right of compulsory process to obtain witnesses as a fourth constitutional right in [State v.]Ballard (1981).”

Chief Justice Moyer noted that none of this Court’s prior decisions has expressly included the right to be proven guilty beyond a reasonable doubt in the same category as the other four constitutional rights enumerated in subsection (c) of the rule. He went on, however, to reject the argument that because the state’s burden of proof was not mentioned in earlier decisions, or specifically cited by the U.S. Supreme Court in Boykin, failure of a trial court to advise a defendant of that right should be subject to a substantial compliance rather than a strict compliance standard.

“(T)he United States Supreme Court held the year after Boykin (that) the right to have the state prove guilt beyond a reasonable doubt is a constitutionally protected right of an accused. In re Winship (1970) ...We therefore reject the state’s contention and instead hold that the duty to advise the defendant of the right to have guilt proven by the state beyond a reasonable doubt is among the duties of Crim.R. 11(C)(2)(c) with which the court must strictly comply.”

With regard to the legal consequence of a trial court failing to advise a defendant of any of the five constitutional rights enumerated in Crim.R. 11(C)(2)(c), the Chief Justice concluded: “(P)ursuant to the strict-compliance standard set forth in Ballard, the trial court must orally inform the defendant of the rights set forth in Crim.R. 11(C)(2)(c) during the plea colloquy for the plea to be valid. Although the trial court may vary slightly from the literal wording of the rule in the colloquy, the court cannot simply rely on other sources to convey these rights to the defendant. When the record confirms that the trial court failed to perform this duty, the defendant’s plea is constitutionally infirm, making it presumptively invalid.”

The majority opinion was joined by Justices Paul E. Pfeifer, Maureen O’Connor and Terrence O’Donnell.

Justice Judith Ann Lanzinger entered a partial dissent that was joined by Justices Evelyn Lundberg Stratton and Robert R. Cupp. Justice Lanzinger wrote that she concurred with the majority’s recognition of a strict compliance standard with regard to Crim.R.11(C)(2)(c), but disputed the majority’s holding that a trial court’s failure to strictly comply with the rule requires automatic reversal of a conviction.

“I respectfully dissent from the majority’s holding that a trial court’s failure to strictly comply with Crim.R. 11(C)(2)(c) requires vacation of the plea and conviction without regard to contrary evidence in the record that the plea was entered knowingly and voluntarily despite the trial court’s omission,” wrote Justice Lanzinger.

“We have held that when a trial judge fails to explain the constitutional rights set forth in Crim.R. 11(C)(2)(c), the guilty or no-contest plea is invalid ‘under a presumption that it was entered involuntarily and unknowingly.’ .... This court has never held, until today, that this presumption is irrebuttable or that a plea must be vacated automatically when the trial court fails to orally explain a constitutional right. ... Allowing the state the chance to rebut the presumption that a defendant has been prejudiced does not confuse the standards of strict compliance and substantial compliance. ... (T)he majority’s holding will invalidate convictions based upon a single omitted oral statement of the trial court, no matter whether the record would otherwise show that the defendant understood and appreciated all constitutional rights being waived.”

ContactsSteven L. Taylor, 614.462.3555, the state and Franklin County prosecutor’s office.